Michelle Bonney v The Trustee for RJ Stewart Painting & Decorating Trust

[2023] FWC 2590

[2023] FWC 2590

FAIR WORK COMMISSION

EX-TEMPORE DECISION

Fair Work Act 2009

s.365—General protections

Michelle Bonney
v

The Trustee for RJ Stewart Painting & Decorating Trust

(C2023/3842)

DEPUTY PRESIDENT LAKE BRISBANE, 9 OCTOBER 2023

Application to deal with contraventions involving dismissal – jurisdictional objection – no dismissal – application dismissed.

1. Ms Michelle Bonney (the Applicant) lodged a application under s.365 of the Fair Work Act 2009 (Cth) (the Act) on 2 July 2023 alleging that she had been dismissed in contravention of a general protection. The Trustee for RJ Stewart Painting & Decorating Trust (the Respondent) filed a response raising a jurisdictional objection on the basis that the Applicant was not dismissed. The matter was heard before me on 26 September 2023 after the parties had provided their submissions.

Legislation and case law

1. I consider the following in determining whether the Applicant was dismissed under s386 of the Act:

   “386Meaning of dismissed

   (1)A person has been dismissed if:

   (a)the person’s employment with his or her employer has been terminated on the employer’s initiative; or

   (b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

1. The Full Bench of this Commission in ABB Engineering Construction Pty Limited v Doumit (ABB) said:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination.

The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively.

The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”[1]

1. In Pawel v Australian Industrial Relations Commission,[2] the Full Bench noted:

“Mere "causation" or "motivation” will not satisfy the requirement that the termination be at the initiative of the employer.”

1. Furthermore, Senior Deputy President Richards in Hastie v Impress Australia Pty Ltd[3]  said:

“The employer’s conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the circumstances.”

Evidence

1. Both parties sought to rely on the text messages surrounding the dismissal. The Applicant had texted she had a migraine to which the Respondent had texted:

“You are being very consistent with taking time off. I need staff that are available at a more consistent schedule”

1. The Respondent texted the following:

“I need staff that can attend work on site consistently if this is not something you can achieve due to your personal situations I’m sorry but I can no longer offer you a position.”

1. At this stage, there was no termination on the employer’s initiative as the Respondent was determining attempting to determine the Applicant’s work availability in her circumstances, considering that she had taken time off. The Applicant took it to mean that she no longer had a role because she could not control her sickness. 

1. The Applicant responded:

“That’s your choice who you want working there but at least when I am there I don’t take the piss. I’ll find work no issues, I would like to know when I can come and get my things and if I am still working the next week for next week for you. Thank you for the opportunity, even if it didn’t work out. Please let me know what is happening”

Consideration

1. With the above text messages being the agreed pivotal exchange between the parties, it must be examined for the intent and against the tests. The Applicant must be able to demonstrate that she had “no real choice” but to resign, the conduct must be “oppressive or repugnant” and that her resignation was did not have a mere causative relationship with the Respondent’s conduct.

1. The Respondent’s messages express the need for the Applicant to be able to attend work more often than she currently had been, and a general expression of requiring staff to be available consistently. There was no oppressive or threatening language or conduct evident in this exchange to which the Applicant can claim to have reacted, and no “dismissal” on the initiative of the Respondent. However, the Applicant’s message in seeking to attend and collect her property and stating that she would find work elsewhere, indicates a resignation.

1. The Applicant submitted that the Respondent would not accept her calls after this exchange which demonstrated the lack of intention on its part to continue the employment relationship where her message sought to know “what [wa]s happening.” I consider that this silence on the part of the Respondent may have indicated that the employment relationship was at an end but does not indicate that the termination was at the initiative of the employer, as the Applicant had already indicated her resignation prior to this conduct.

1. The Applicant’s case does not meet the high threshold that the Applicant had no option but to resign. Despite her attempts to contact the Respondent for clarity and to collect her property, and the lack of response, the evidence does not support a finding of a forced resignation.

Conclusion

1. Although I have found that the Applicant was not dismissed, a conference can be facilitated under s.372 of the Act. A conciliation may be held pending the consent of the Respondent if there is it is alleged that there was a general protections breach, and if the Applicant is no longer entitled to apply under s.365 of the Act.

1. If the Respondent wishes to engage in this process, they must indicate they consent to conference.

1. If the Respondent does not wish to engage in this process, the Applicant will need to pursue her General Protections claim through the appropriate jurisdiction.

1. I Order accordingly.

DEPUTY PRESIDENT

[1] (1996) PRN6999.

[2] (1999) FCA 1660 at 58 (Pawel J).

[3] [2008] AIRC 102 at [48].

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